Citation Nr: 0622817
Decision Date: 07/31/06 Archive Date: 08/10/06
DOCKET NO. 03-34 890 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for diabetes mellitus,
type II.
2. Entitlement to service connection for a low back
disability.
3. Entitlement to service connection for a left hand
disability.
4. Entitlement to an increased rating for acneform lesions
of the upper back, currently evaluated as 10 percent
disabling.
5. Entitlement to an increased rating for post-operative
residuals of a left knee injury, currently evaluated as 10
percent disabling.
6. Entitlement to a compensable rating for tinea pedis.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
M.C. Peltzer, Counsel
INTRODUCTION
The veteran served on active duty from September 1982 to June
1998.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from January 2003, August 2003, and May
2005 rating decisions issued by the Regional Office (RO) of
the Department of Veterans Affairs (VA) located in No. Little
Rock, Arkansas.
The issue of entitlement to secondary service connection for
a left hand disability is addressed in the REMAND portion of
the decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Competent, probative evidence does not indicate the
veteran's diagnosed diabetes mellitus was acquired in service
or was otherwise attributable to his service; diabetes
mellitus was not diagnosed within one year of his discharge
from active duty.
2. Competent, probative evidence indicates the veteran's
diagnosed lumbar spine disability (degenerative joint
disease) was acquired in service.
3. The veteran's acneform lesions of the upper back are not
treated with systemic therapy; the upper back skin disability
involves less than 20 percent of the entire body and of the
exposed area.
4. The veteran's service-connected left knee disability is
manifested by slight instability and complaints of pain with
minimal limitation of function of the knee.
5. The veteran's tinea pedis does not require treatment with
systemic therapy such as corticosteroids or immunosuppressive
drugs or involve five percent of the entire body or exposed
area.
CONCLUSIONS OF LAW
1. Diabetes mellitus, type II, was not incurred in or
aggravated by service and may not be presumed to have been
incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309
(2005).
2. Degenerative joint disease of the lumbar spine was
incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.303 (2005).
3. The criteria for a disability rating in excess of 10
percent for acneform lesions of the upper back are not met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7,
4.14, 4.118, Diagnostic Codes 7806, 7817, 7820 (2005).
4. The criteria for a disability rating in excess of 10
percent for post-operative residuals of a left knee injury
are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a,
Diagnostic Codes 5257, 5260, 5261 (2005).
5. The criteria for a compensable disability rating for
tinea pedis are not met. 38 U.S.C.A. §§ 1155, 5107 (West
2002); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.118, Diagnostic Codes
7806, 7813 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection Claims
Once the evidence has been assembled, it is the Board's
responsibility to evaluate the record. 38 U.S.C.A.
§ 7104(a). When there is an approximate balance of evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski,
1 Vet. App. 49, 53 (1990), the Court stated that "a veteran
need only demonstrate that there is an 'approximate balance
of positive and negative evidence' in order to prevail." To
deny a claim on its merits, the evidence must preponderate
against the claim. Alemany v. Brown, 9 Vet. App. 518, 519
(1996), citing Gilbert, 1 Vet. App. at 54.
Generally, service connection may be granted for any
disability resulting from injury suffered or disease
contracted in line of duty, or for aggravation in service of
a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131.
Service connection may be established by demonstrating that
the disability was first manifested during service and has
continued since service to the present time or by showing
that a disability which pre-existed service was aggravated
during service. Service connection may be granted for any
disease diagnosed after discharge from service, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R. § 3.303.
When a chronic disease such as arthritis or diabetes becomes
manifest to a degree of 10 percent within one year of the
veteran's discharge from service, such disease shall be
presumed to have been incurred in service, even though there
is no evidence of such disease during the veteran's period of
service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R.
§§ 3.307, 3.309.
Absent any independent supporting clinical evidence from a
physician or other medical professional, "[t]he veteran's own
statements expressing his belief that his disabilities are
service connected . . . are not probative." Espiritu v.
Derwinski, 2 Vet. App. 492, 495 (1992). As such, while the
veteran is competent to describe symptoms, he is not
competent to medically diagnose diabetes mellitus, a low back
disability or a left hand disability. Neither is he
competent to offer etiological opinions as to any such
disabilities.
Diabetes Mellitus, Type II
The veteran was not diagnosed with diabetes mellitus while on
active duty or upon his discharge from the military in June
1998. His March 1998 report of medical examination contains
findings of negative urine sugar levels and his
contemporaneous report of medical history shows he indicated
he did not have and had not had sugar in his urine.
However, service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2005). Certain
conditions, to include diabetes mellitus, may be presumed to
have been incurred in service if manifest to a compensable
degree within one year of discharge from active duty.
38 U.S.C.A. § 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309
(2005). While the veteran argues that the VA medical
evidence shows abnormal sugar levels in 1998, see October
2005 substantive appeal, the first evidence of record of
elevated sugar levels is VA medical evidence dated in 2001,
noting a new diagnosis of diabetes mellitus in July 2001. As
the competent medical evidence of record fails to indicate
the veteran's diagnosed diabetes mellitus was acquired in
service or was otherwise attributable to his service, the
weight of the evidence is against his service connection
claim. As diabetes mellitus was not manifest within one year
of his June 198 discharge from active duty, service
connection is also not warranted on a presumptive basis.
Low Back Disability
The veteran's service medical records reflect treatment on
numerous occasions for low back pain. The June 2004 hearing
transcript reflects the veteran testified that while he had
no particular injury to his back, he had to do a lot of
lifting as a diesel mechanic while in service which resulted
in back pain. His March 1998 report of medical examination
for retirement indicates his spine was clinically evaluated
as normal.
As indicated above, service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(2005). Here, the September 1998 VA examination reports
indicate the veteran reported a remote history of episodic
low back pain but it had been a relatively infrequent
complaint. However, the September 1998 VA radiographic
evidence of the lumbosacral spine shows small anterior
osteophytes at multiple levels but his vertebral heights,
alignment, and disc spaces were unremarkable. His VA
treatment records show he sought treatment in May 2002 due to
an onset of low back pain two weeks before. X-rays in
September 2002 identified degenerative joint disease. See
also January 2004 VA radiographic evidence of mild
degenerative joint disease of the lumbar spine.
The June 2005 VA spine examination report reflects the
examiner indicated that the veteran had a history of heavy
lifting while in the military working as a mechanic and it
was at least as likely as not that his current symptomotology
was related to his military service. The examination report
indicates the examiner reviewed the claims file and the
additional medical history given by the veteran to the
examiner is credible in light of his service medical records.
The October 2005 addendum reflects that, based on the history
of heavy lifting given by the veteran, the objective findings
on multiple examinations throughout his medical record
including the 1998 radiographic evidence, the examiner was
unable to determine the cause of the veteran's current
complaints because to do so would only be from mere
speculation instead of in terms of medical certainty.
An etiology opinion does not need to be to a medical
certainty to be favorable to the veteran in a service
connection claim. While the evidence supporting a claim or
being in relative equipoise is more than evidence that merely
suggests a possible outcome, there need only be at least an
approximate balance of positive and negative evidence for the
veteran to prevail. Gilbert v. Derwinski, 1 Vet. App. 49,
55-56 (1990). As the VA examiner opined that it was at least
as likely as not that the veteran's current low back
disability was related to his military service (even though
he could not determine the cause to a medical certainty), the
competent medical evidence rises to the level of equipoise
that the veteran's current low back disability was incurred
in service. In light of the veteran's lengthy time in
service and his military occupational specialty of mechanic,
the Board will resolve reasonable doubt in the veteran's
favor and hold that service connection is warranted for
degenerative joint disease of the lumbar spine.
Increased Rating Claims
Disability evaluations are assigned to reflect levels of
current disability. The appropriate rating is determined by
the application of a schedule of ratings which is based on
average impairment of earning capacity. Separate diagnostic
codes identify the various disabilities. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4. When there is a question as to which of
two evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
In evaluating claims for increased ratings, we must evaluate
the veteran's condition with a critical eye toward the lack
of usefulness of the body or system in question. 38 C.F.R.
§ 4.10. A disability of the musculoskeletal system is
measured by the effect on ability to perform the normal
working movements of the body with normal excursion,
strength, speed, coordination, and endurance. Weakness is as
important as limitation of motion in assigning the most
accurate disability rating. 38 C.F.R. § 4.40. Although
§ 4.40 does not require a separate rating for pain, it does
provide guidance for determining ratings under other
diagnostic codes assessing musculoskeletal function. The
Board has a special obligation to provide a statement of
reasons or bases pertaining to § 4.40 in rating cases
involving pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997).
Acneform Lesions of the Upper Back
The veteran argues that his skin disability located on his
upper back is not properly evaluated, asserting that his
lesions have gotten worse and intermittently itch. See
October and November 2003 VA treatment records. A higher 30
percent rating is warranted for any extent of involvement of
the skin, and; systemic therapy such as therapeutic doses of
corticosteroids, immunosuppressive retinoids, PUVA (psoralen
with long-waive ultraviolet-A light) or UVB (ultraviolet-B
light) treatments, or electron beam therapy required for a
total duration of six weeks or more, but not constantly,
during the past 12-month period. 38 C.F.R. § 4.118,
Diagnostic Code 7817 (2005). Here, the evidence shows the
veteran is treated with topical creams and soaps for his skin
disability. See VA treatment records and medication lists.
As such, his disability does not approximate the criteria for
a higher disability rating.
Alternative diagnostic codes have been considered. But see
38 C.F.R. § 4.14 (2005). A 30 percent rating is provided for
eczema or dermatitis pathology that is 20 to 40 percent of
the entire body or 20 to 40 percent of exposed areas
affected, or; that requires systemic therapy such as
corticosteroids or other immunosuppressive drugs for a total
duration of six weeks or more, but not constantly, during the
past 12-month period. 38 C.F.R. § 4.118, Diagnostic Codes
7820, 7806 (2005). In addition to not revealing the type of
systemic therapy required, the evidence does not show the
veteran's skin pathology of the back involves the amount of
area contemplated by a higher disability rating.
Specifically, the December 2002 and August 2003 VA skin
examination reports show approximately six percent of the
surface area was involved and was in a mantle distribution of
the upper back and shoulders. The May 2005 skin examination
report indicates there were two lesions on the back with
evidence of early keloid formation and mostly excoriated
papules and chronic granulomatous folliculitis on the upper
part of the pack that involved less than 10 percent of the
body area. Accordingly, a higher disability rating is also
not warranted under alternative diagnostic codes.
In short, the weight of the evidence is against a disability
rating in excess of 10 percent for acneform lesions of the
upper back and this appeal is denied. While the June 2004
hearing transcript reflects the veteran testified to an
increase in his lesions (they had spread to his chest area),
a separate disability rating has been established for these
symptoms and cannot serve as the basis for an increase for
this claim. See August 2003 rating decision.
Post-Operative Residuals of a Left Knee Injury
The June 2004 hearing transcript reflects that the veteran
testified to increased pain with use of his knee, to
avoidance of weight bearing activities, and to limitation of
motion. He also testified to his left knee wobbled from
side-to-side. His current 10 percent disability rating
contemplates slight instability. A 20 percent disability
rating is assigned for recurrent subluxation or lateral
instability of the knee that is moderate. 38 C.F.R. § 4.71,
Diagnostic Code 5257 (2005).
Here, the evidence does not reveal a disability picture that
approximates moderate recurrent subluxation or lateral
instability. The veteran has testified that his knee did not
lock but constantly hurt even with his medications. See June
2004 hearing transcript. His VA treatment records reflect he
was prescribed salsate, Motrin and naproxen for his knee.
See VA medication lists (noting medications for degenerative
joint disease); July 2003, October 2005 VA treatment records.
The October 2002 VA joint examination report reflects the
veteran had slight lateral laxity with varus test but Lachman
and anterior drawer testing was negative. The report also
indicates he wore no brace, did not use a cane, and moved
around the room without any apparent difficulty. While
February 2002 and May 2002 VA treatment record indicate he
had a slight antalgic gait (although in connection with
treatment for nonservice-connected low back condition), his
VA treatment records generally indicate his gait was okay,
See April 2003, September 2004, June 2005, August 2005 VA
treatment records. A June 2001 VA treatment record contains
complaints of knee pain but no swelling. While there is
evidence of lateral laxity of the knee and complaints of
instability and pain, the overall disability picture is not
reflective of symptoms that approximate moderate recurrent
subluxation or instability and a higher disability rating is
therefore not warranted.
The evidence includes x-ray findings of osteoarthritis of the
left knee. See October 2002 VA radiology report (noting mild
degenerative changes). A claimant who has arthritis and
instability of the knee may be rated separately under
Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (July
1, 1997). When the knee disorder is already rated under
Diagnostic Code 5257, the veteran must also have limitation
of motion which at least meets the criteria for a zero-
percent rating under Diagnostic Code 5260 (flexion limited to
60 degrees or less) or 5261 (extension limited to 5 degrees
or more) in order to obtain a separate rating for arthritis.
VAOPGCPREC 9-98 (Aug. 14, 1998).
The veteran testified that he cannot completely bend or
extend his leg and cannot stand for a long period of time.
In contrast, the October 2002 VA examination report shows the
veteran had flexion to 130 degrees with slight pain on motion
with a little patellofemoral popping. The report indicates
he had mild tenderness over the anterolateral joint line and
he complained of difficulties with extended weight-bearing,
stairs, and squatting-type activities. However, as indicate
above, he did not require the use of a cane or brace and his
gait was okay. A June 2001 VA treatment record indicates his
range of motion was good and the October 2002 examination
report shows no muscle atrophy of the left lower extremity
(as per thigh and calf measurements). See also January 2004
VA treatment record (normal muscle strength in lower
extremities). While the evidence contains complaints of
functional impairment, the objective evidence is reflective
of minimal function limitation of flexion of the knee which
does not approximate limitation of range of motion to 60
degrees. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v.
Brown, 8 Vet. App. 202 (1995). As the evidence reveals
functional flexion of the left knee that does not meet the
criteria for a noncompensable rating, neither a higher or
separate disability rating based on limitation of flexion is
warranted.
Nor is a higher or separate disability rating based on
limitation of extension. See VAOPGCPREC 9-04 (Sept. 17,
2004). Extension limited to 5 degrees is noncompensable
while a10 percent disability rating is warranted for
extension of the knee limited to 10 degrees. 38 C.F.R.
§ 4.71a, Diagnostic Code 5261 (2005). The evidence of record
fails to reveal any functional limitations involving
extension of his left knee. See October 2002 VA joint
examination report (full extension of the knee to zero
degrees). Accordingly, a higher (separately or in
combination) rating is not warranted based on limitation of
extension.
Higher disability ratings under additional alternative
diagnostic codes available to evaluate knee disabilities have
also been considered. See 38 C.F.R. § 4.71a, Diagnostic
Codes 5256, 5262 (2005); but see 38 C.F.R. § 4.14 (2005).
The evidence of record, however, does not reflect the veteran
has ankylosis of his left knee or impairment of the tibia and
fibula resulting in nonunion with loose motion such that
application of Diagnostic Code 5256 or 5262 would be proper.
In short, the weight of the evidence is against a higher
disability rating for the veteran's left knee based on
limitation of function or instability. Moreover, while the
veteran has a post-operative scar on his left knee, the
evidence does not show and the veteran does not argue the
scar is tender or limits function such that a separate
disability rating is indicated. See October 2002 VA
examination report (noting well-healed surgical scar). As
neither separate nor higher disability ratings are warranted
under alternative diagnostic codes, the weight of the
evidence is against the veteran's claim for a disability
rating in excess of 10 percent for his left knee disability,
and this appeal is denied.
Tinea Pedis
The June 2004 hearing transcript shows the veteran testified
to constant cracking of his feet. Fungal skin conditions are
rated as disfigurement of the head, face, or neck, as scars,
or as dermatitis, depending upon the predominant disability.
38 C.F.R. § 4.118, Diagnostic Code 7813 (2005). The evidence
does not indicate, nor does the veteran assert he has
disability from scars and this skin disability involves his
feet, not the head, face or neck. Therefore, the criteria
for evaluating dermatitis are the most appropriate in the
instant case.
A 10 percent rating is appropriate when at least 5 percent,
but less than 20 percent, of the entire body, or at least 5
percent, but less than 20 percent, of exposed areas affected,
or; intermittent systemic therapy such as corticosteroids or
other immunosuppressive drugs required for a total duration
of less than six weeks during the past 12-month period. 38
C.F.R. § 4.118, Code 7806 (2005). Instead of systemic
therapy such as corticosteroids or immunosuppressive drugs,
the evidence shows the veteran uses anti-fungal topical
creams for his tinea pedis (athlete's foot). See November
2004 VA treatment record, May 2005 VA skin examination
report. The veteran reported cracking and peeling between
his toes if he wears socks and shoes too long (wearing
sandals worked better for his feet) but the amount of the
involved area was less than five percent. See May 2005 VA
examination report. As such, his tinea pedis disability
picture does not approximate the criteria for a compensable
disability rating and this appeal is denied.
Duty to Notify and Assist
When VA receives a complete or substantially complete
application for benefits, it is required to notify the
claimant and his representative, if any, of any information
and medical or lay evidence that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. §
3.159(b) (2005).
The veteran was notified by letter in April 2005 of the
evidence VA would seek, the evidence he was required to
submit, and requested he send the needed evidence or
authorize VA to obtain the evidence on his behalf. The
enclosures identified him of the evidence necessary to
establish an increased rating and service connection. He was
previously notified of VA's duty to assist with his claims,
his responsibilities in the claim process, and the evidence
necessary to his claims by letters issued in October 2002,
November 2002, June 2003, and January 2005. He was notified
of the evidence necessary to establish his diabetes mellitus
claim, the evidence he was required to submit, the evidence
VA would seek, and requested he send the needed evidence or
authorize VA to obtain the evidence on his behalf prior to
initial adjudication. See also January 2005 letter. The
veteran has been provided with every opportunity to submit
evidence and argument in support of his claims and to respond
to VA notices. Under these circumstances, the Board
considers VA's notice requirements are met and any issue as
to the timing/completeness of the notice was harmless.
While the veteran was provided with the type of information
and evidence needed to substantiate his claims, he was not
provided with notice of any effective date criteria or the
rating criteria for his service connection claim. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Despite inadequate notice provided to the veteran on these
latter elements, the Board finds no prejudice to the veteran
in proceeding with the issuance of a final decision. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the appellant has been prejudiced thereby). To the
extent that the weight of the evidence is against the
veteran's diabetes and increased rating claims, any questions
as to any appropriate effective dates--and potential rating
for his service connection claims--are rendered moot. As for
his lumbar spine claim, the issue of an appropriate effective
date and disability rating will be assigned in the first
instance by the agency of original jurisdiction, and it is
therefore not prejudicial at this time to grant his service
connection appeal. Under these circumstances, the Board is
satisfied that any issue as to the completeness of the notice
was harmless.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d)
(2005). The veteran was afforded VA examinations in
connection with his claims and the resulting reports, as well
as his VA treatment records and a transcript of the June 2004
hearing before the undersigned, have been associated with the
claims file. As the veteran has not identified or authorized
VA to obtain any additional evidence pertinent to this claim,
no further assistance to the veteran regarding development of
evidence is required.
ORDER
Service connection for diabetes mellitus, type II is denied.
Service connection for degenerative joint disease of the
lumbar spine is granted.
Increased disability ratings for acneform lesions of the
upper back, post-operative residuals of a left knee injury,
and tinea pedis are denied.
REMAND
The veteran argues he has a left hand disability as the
result of his service-connected left elbow disability. Prior
to appellate review of this issue, a medical opinion is
needed. A January 2004 VA treatment record contains evidence
of normal left hand X-ray findings and reflects paresthesias
associated with the left elbow. Functional loss of his left
upper extremity attributed to his left elbow disability is,
in part, the basis of his separate 20 percent disability
rating for his service-connected tendonitis. See August 2003
rating decision. The examiner should determine whether the
veteran has a distinct, chronic left hand disability, and, if
so, whether the left hand disability is the result of,
proximately due to, or aggravated by his service-connected
left elbow tendonitis.
Accordingly, the case is REMANDED for the following actions:
1. Schedule the veteran for an
appropriate VA examination. After
reviewing the evidence of record and
examining the veteran, the examiner
should provide an opinion as to whether
the veteran has a chronic left hand
disability. If such a disability is
diagnosed, the examiner should provide an
opinion as to whether the diagnosed
disability at least as likely as not
(50%) is the result of, proximately due
to, or aggravated by his service-
connected left elbow tendonitis. The
Board notes that temporary and
intermittent flare-ups of any condition
would not itself constitute aggravation,
unless the underlying condition is
considered to have gotten worse.
If any medical opinion cannot be given on
a medical scientific basis, and without
invoking processes relating to guesses or
judgments based upon mere conjecture, the
examiner should clearly and specifically
so indicate in the examination report.
Send the claims folder to the examiner
for review.
2. Readjudicate the veteran's secondary
service connection claim. If the benefit
sought on appeal remains denied, the
veteran and his representative should be
provided a supplemental statement of the
case that contains notice of all relevant
actions taken on the claim for benefits
and all evidence received since September
2004. The veteran and his representative
should be afforded an opportunity to
respond. Thereafter, the case should be
returned to the Board for appellate
review.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
No action is required of the veteran until further notice.
However, the Board takes this opportunity to advise the
veteran that the conduct of the efforts as directed in this
remand, as well as any other development deemed necessary, is
needed for a comprehensive and correct adjudication of his
claim. The veteran is also advised that failure to report
for any scheduled examination may result in the denial of a
claim. 38 C.F.R. § 3.655 (2005).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
____________________________________________
HEATHER J. HARTER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs